U.S. DISTRICT COURT STRIKES DOWN SOUTH DAKOTA BALLOT ACCESS LAWS FOR NEW PARTIES

On February 21, U.S. District Court Judge Lawrence Piersol, a Clinton appointee, struck down South Dakota’s ballot access laws for new parties. He ruled that the March 27 petition deadline is too early, given South Dakota winter weather that makes petitioning difficult. He also struck down the number of signatures required, 2.5% of the last gubernatorial vote, which ranges between 6,900 and 8,900 signatures. And he ruled that the state cannot force small parties to nominate by primary, but instead must be allowed to nominate by convention for all partisan office. Libertarian Party of South Dakota v Krebs, 4:15cv-4111.

The Constitution Party was a co-plaintiff. The decision does not set out injunctive relief, because the legislature may pass a bill that corrects the laws that were struck down. If HB 1286 does not pass, then plaintiffs will seek injunctive relief.

The decision turns partly on history. Before 1929, South Dakota let any party on the ballot with no petition, but even before 1929, the state never had more than five parties on.

As a result of this decision, the only states with a mandatory petition for parties to become qualified in excess of 2% of the last vote cast are Alabama, Oklahoma (both 3% of the last gubernatorial vote) and Tennessee (2.5% of the last gubernatorial vote).

The lawsuit had been filed in 2015, after the legislature moved the petition deadline from late March to early March. Ironically, that change never went into effect, because a referendum petition was filed against that bill, and the voters rejected it in 2016. Afterwards, the lawsuit continued, this time arguing that even late March was too early.

On February 22, U.S. District Court Judge Benjamin Settle, a Bush Jr. appointee, struck down a Washington ballot access law affecting minor party and independent candidates for President. It required such candidates to run notices in newspapers at least ten days before they started to petition, and the ad had to say where they would be petitioning.

The lawsuit was won by Rocky De La Fuente, an independent presidential candidate in 2016. De La Fuente v Wyman, w.d., 3:16cv-5801. He had successfully collected the required 1,000 valid signatures, but because he had not run the ad in time, his signatures were disallowed, and he was kept off the ballot.

The decision says the burden caused by the law is slight, but on the other hand there is no rational reason for the requirement.

The real harm the law does is, in effect, give Washington an even earlier deadline than the statutory deadline of July 23. A candidate who enters the presidential race late, such as Evan McMullin (an independent who declared on August 8, 2016) can’t jump into the race a few days before the deadline, because he or she must have taken action at least ten days before starting to petition.

This is the first Washington ballot access law to be declared unconstitutional since 2004, when the Libertarian Party won a lawsuit in state court against the old law that required a minor party candidate to poll at least 1% of the vote in the blanket primary. That lawsuit lost all significance after Washington stopped using a blanket primary in 2006.

Although Illinois has one of the most severe ballot access laws for minor party and independent candidates, it has long provided a loophole for easy ballot access, for candidates who are lucky enough not to have their petitions challenged. For at least 80 years, if a candidate submits even one signature, and no one challenges, that candidate is put on the ballot. However, this year, the State Board of Elections says that policy will no longer be followed. Even a candidate who is not challenged will not go on the ballot, unless he or she submits a petition equal to at least 10% of the legal requirement. For U.S. House, that would mean between 1,000 and 1,500 signatures.

Nebraska: State Senator Justin Wayne (D-Omaha) has introduced LB 969, which lowers the non-presidential independent petition from 10% of the number of registered voters, to 4,000 signatures.

Rhode Island: Representative John Edwards (D-Portsmouth) has introduced HB 7509. It allows the petition to recognize a new party to start circulating the day after an election. The current statutory law says such a petition can’t start to circulate until January 1 of the election year, so the bill expands the petitioning period from seven months to 21 months.

Wyoming: HB 40 passed the House on February 19. It requires petition signatures to be dated, so that if a voter signs two petitions for the same office, officials can count the earlier signature but not the later one.

Alabama: on February 15, the Senate Constitution, Ethics & Elections Committee passed HB 17, which ends special U.S. Senate elections, except for those held in November of even-numbered years. The House had already passed the bill. If this bill had been in effect in 2017, there would have been no special U.S. Senate election on December 12, 2017, and gubernatorial appointee Luther Strange would have continued to serve in the Senate until the November 2018 election.

Arizona: on January 17, the House Local Government & International Affairs Committee defeated HB 2032. It would have forced Tucson to use non-partisan elections for its city offices. Tucson is the only city in the state that uses partisan elections. Generally, Democrats win those Tucson city elections.

Arizona (2): on February 13, the House Federalism, Property Rights and Public Policy Committee passed HCR 2022. It says that there would no longer be any primaries for U.S. Senate. Instead, Republican state legislators would nominate two Republicans, and Democratic state legislators would nominate two Democrats, and only those four individuals would be on the November ballot. By excluding minor party and independent candidates from the election, this law, if enacted, would be unconstitutional.

Indiana: on February 5, the Senate defeated SB 328 by 17-31. It would have lowered minor party and independent candidate statewide petitions from 2% of the last Secretary of State vote, to 4,500 signatures. It also would have let an unqualified party circulate a petition before it had chosen its nominees. Although this is a disappointing outcome, this is the first time any ballot access bill in Indiana has advanced this far. The current law was passed in 1980 and until this year, no bill to ease the 1980 requirements had received a floor vote in either house.

Kentucky: on February 5, the legislature passed HB 157. It lets individuals give $5,000 to a minor party, whether it is ballot-qualified and nominates by convention, or whether it is not ballot-qualified at all. The old law, letting individuals give $5,000 only to a major party, but lower limits for all other parties, was declared unconstitutional last year in Shickel v Dilger. On February 19, Governor Matt Bevin let the bill become law without his signature.

New Hampshire: on February 13, the House Election Law Committee defeated all bills to ease ballot access. The committee votes were either 20-0 or 18-2. HB 1479 would have let small qualified parties nominate by convention. HB 1239 would have let voters sign more than one petition to qualify a new party. HB 1448 would have made it easier for a party to remain on the ballot. HB 1568 would have let a group become qualified if it attained membership of 1% of the state total. William Gardner, Secretary of State, opposed all of these bills.

New Hampshire (2): on February 15, the Senate defeated SB 362. It would have required presidential candidates in both the primary and general election to release their income tax returns, and would have forbidden any presidential elector from voting for anyone who had not released the returns.

New Mexico: on February 15, the legislature passed SB 178. It ends primaries for Lieutenant Governor. Instead, gubernatorial nominees would choose their own Lieutenant Governor running mate. Governor Susana Martinez hasn’t signed the bill yet.

North Carolina: on February 13, the legislature passed HB 90, which alters the composition of the State Board of Elections. The Board would consist of 9 gubernatorial appointees, four Republicans, four Democrats, and one member who is neither. Governor Roy Cooper hasn’t signed it yet.

New York: on February 13, the legislature passed AB 8917, which moves the 2018 primary for state and local office from September 11 to September 13.

South Dakota: on February 13, the House defeated HB 1305. It would have allowed independent voters to fill out a blank on their registration form, expressing their desire to vote in the primary of any particular party.

South Dakota (2): on February 23, the House passed HB 1286. It lowers the party petition to 1% of the last gubernatorial vote, and moves the deadline (for a party that wants to nominate for all offices) from March to July. New parties would not use the June primary. The bill moves the deadline for independent candidates from April to July (except that the presidential independent petition would continue to be in August). It requires candidates of small qualified parties to submit candidate petitions, if they are running for Governor, Congress, or legislature.

Utah: on February 8, the House defeated HB 68. It would have given parties the option to provide that no one could get on their primary ballot by petition; instead all primary candidates who need to show substantial support at a party convention.

Virginia: on February 1, a subcommittee of the House Privileges & Elections Committee defeated HB 540, which would have lowered the definition of a political party from a group that got 10% for any statewide race, to 3%.

Washington: HB 1469 and SB 5333, the bills to move the presidential primary from May to March, have missed some legislative deadlines and can’t pass.

Washington (2): SB 6191, the bill that says a presidential elector who doesn’t vote for the candidate who got the most popular votes in the state is automatically replaced, also ran out of time and did not pass.

West Virginia: on February 15, the House passed HB 4434, which says only candidates not registered in a party can be independent candidates.

West Virginia (2): on January 22, the House passed HB 4002, which converts all State House districts to single-winner districts. Current law has twenty State House districts that elect several members (ranging from two members to five members).

California: on February 8, the Ninth Circuit heard arguments in Soltysik v Padilla, 16-55758. This is the case that challenges the California law that won’t let members of unqualified parties list their party on the ballot. The plaintiff is a registered Socialist, but when he ran for the Assembly in 2014, the law required "party preference: none" to be on the ballot. All three judges appeared sympathetic to Soltysik. They are Stephen Reinhardt, William Fletcher, and John Owens.

California (2): on February 16, the Independent Party asked the U.S. Supreme Court to hear its appeal. Independent Party v Padilla, 17-1200. The issues are whether the Secretary of State has the right to tell the Independent Party that it cannot use that name. The Ninth Circuit had upheld the Secretary of State in an unsigned four-page decision that implied anyone who forms a party called "Independent Party" is committing fraud. The Court seemed not to have read the record, which shows that currently five states have a ballot-qualified party named "Independent Party", and eight other states have recently had such a party.

Florida: on February 1, a U.S. District Court struck down state procedures by which an ex-felon can ask the Governor to restore his or her voting rights. The opinion says the procedure is arbitrary. The judge has still not decided what the remedy will be, but because this is not a class action, only the plaintiffs will benefit initially from the ruling. Hand v Scott, n.d., 4:17cv-128.

Colorado: on February 14, U.S. District Court Judge William Martinez, an Obama appointee, ruled that the new distribution requirement for statewide initiatives is probably unconstitutional. It requires signatures of 2% of the registered voters in each of the state’s 35 State Senate districts. The ruling says using registered voters violates one-person, one-vote. The law would have been safe if it either required an equal number of signatures from each State Senate district, or perhaps some percentage of the population of each district. Semple v Williams, 1:17cv-1007. The state will have another chance to defend the law; its brief is due March 9.

Illinois: the Green Party has asked the U.S. Supreme Court to hear its ballot access case, relating to state legislative elections. Tripp v Scholz, 17-1129.

Maine: on February 16, backers of ranked choice voting filed a lawsuit in state court to make sure that the state follows the existing law and uses ranked choice voting in the June primary for all office. The Secretary of State says the lawsuit is not needed because he intends to use ranked choice voting, although the legislature will need to appropriate more money to get ready. The primary is in June. Committee for Ranked Choice Voting v Dunlap, Kennebec Co. Superior Court, 18-24.

Minnesota: on February 13, the Eighth Circuit heard oral argument in the "disobedient presidential electors" lawsuit, Abdurrahman v Dayton, 16-4551. The plaintiff had been a Democratic presidential elector in 2016 and when he voted for Bernie Sanders in the electoral college in December, state officials immediately removed him as an elector, so his vote wasn’t counted. The U.S. District Court had refused any injunctive relief and then had dismissed the case before a trial could be held. The elector is asking the Eighth Circuit to send the case back to the U.S. District Court for a decision on declaratory relief; the state says the case is moot.

Nebraska: on February 1, State Senator Bob Krist filed a federal lawsuit against the law requiring independent candidates to get the signatures of 10% of the registered voters, which would be about 125,000 signatures. The Complaint says he wishes to be an independent candidate for Governor this year. Krist v Gale, 8:18cv-39. However, on February 12 Krist switched his registration from independent to Democratic, and said he would enter the Democratic primary. This endangers his lawsuit; the state will probably argue that now he lacks standing. It is possible the Complaint will be amended to add at least one more independent candidate-plaintiff.

North Carolina: on February 27, the Green Party filed a motion to force the state to recognize that it is a qualified party. The motion is part of the lawsuit that the party filed last year, Leifert v North Carolina Board of Elections. The law says a party whose presidential candidate was on the ballot in at least 35 states in the last election is a qualified party. But the Board of Elections says even though the Green Party has proved it meets this condition, because the Board currently has no members, recognition cannot now be extended. This seems odd, because the Board still has executive employees who make decisions about other matters.

North Carolina (2): on January 31, U.S. District Court Judge Catherine Eagles, an Obama appointee, ordered the state to hold judicial primaries for the four statewide races. North Carolina has partisan elections for state judge, but last year the legislature abolished primaries for that office, only for 2018, because it thought it might be drawing new judicial district boundaries and wanted to give itself more time. Judge Eagles said there was no rational reason to suspend primaries for the statewide races. North Carolina Democratic Party v Berger, m.d., 1:17cv-1113. But on February 9, the Fourth Circuit stayed her order, in a 2-1 vote. 18-1150.

Virginia: on January 19, U.S. District Court Judge Michael Urbanski, an Obama appointee, struck down the law that says an incumbent office-holder may dictate to his or her party whether the party uses a primary or a convention in that incumbent’s race. However, on February 5, he stayed his own opinion while the state appeals. Fitzgerald v Alcorn, e.d., 5:17cv-16.

National: on February 20, the U.S. Supreme Court refused to hear Gary Johnson’s and Jill Stein’s case against the Commission on Presidential Debates. The other debates case is still pending in U.S. District Court.

Unbound, the Conscience of a Republican Delegate, by Curly Haugland and Sean Parnell, June 2016, paperback, 112 pages. Published by Citizens in Charge Foundation.

The motivation for this book was to persuade Republican delegates to the 2016 convention that they were free to make their own decision, when they voted for who should be the Republican presidential nominee. But regardless of the reason the book came into existence, it is an excellent history and reference on the subject of whether Republican delegates to national conventions can vote for anyone they please.

The book opens with the history of the two major parties, on the question of whether individual delegates did retain freedom to vote as they liked. The Democratic Party did not recognize that concept, and permitted state delegations to adopt the "unit rule". A unit rule tells the delegates from one particular state that they all must vote for the presidential candidate whom the majority of the delegation prefers. The Republican Party stood in sharp contrast and never allowed the unit rule, or any other infringement, on individual delegate choice, until 1976.

Although sometimes state Republican Parties favored a unit rule for their own state, Republican national conventions never recognized the power of state delegations to enforce such a rule. But, it was the responsibility of individual delegates to speak out at the national convention to defend their autonomy, whenever that delegate’s state tried to impose the unit rule.

Starting in the 1910’s, some states passed laws binding delegates, but Republican national conventions always disregarded such laws.

The Republican Party briefly changed its policy in 1976, when the Gerald Ford forces passed a national convention rule telling delegates that they had to obey any state laws that bound them. However, in 1980 the Republicans reversed course, and reinstalled delegate autonomy.

Chapter 3 describes the confusion in the last few Republican national conventions over whether the old principle of autonomy was still in effect.

Chapter 4 sets out the case law, from the U.S. Supreme Court on down, that states cannot bind delegates.

Chapter 5 makes the good government argument in favor of letting delegates remain free.

The book’s authors did a complete research job. The book is filled with particular details about past Republican national conventions, especially 1856, 1860, and 1880, where these issues were hashed out. For people interested in election law as it relates to political parties, this book deserves to be read and owned.

The chart in the next section below shows the number of registered voters in each party, for states that have registration by party. All of the data is as of November or December 2017, or January or February 2018, except that the Massachusetts data is from October 2016, because the state is unwilling to furnish anything newer.

B.A.N. has been publishing data on the number of registered voters in each party, in each state, since 1992. The percentage of voters (in the states that have registration by party) inside the two major parties has slowly declined ever since 1992:

1992	80.73%
1994	80.68%
1996	79.48%
1998	78.20%
2000	76.62%
2002	75.23%
2004	74.98%
2006	74.03%
2008	74.34%
2010	73.56%
2012	71.95%
2014	70.96%
2016	69.97%
Early 2018	69.33%

The only exception to the decline was in 2008. Probably the Barack Obama campaign caused that.

`	Dem.	Rep.	Ind misc	Lib’t.	Green	Consti.	Wk Fam	Reform	other
Alaska	76,379	141,742	275,531	7,593	1,738	421	?	?	17,242
Arizona	1,096,747	1,264,154	1,262,989	31,554	6,938	?	?	?	– –
Arkansas	80,453	87,067	1,576,230	348	43	?	?	?	– –
Calif.	8,471,371	4,827,973	4,870,135	140,001	91,631	321	?	?	579,049
Colorado	1,003,424	995,090	1,163,751	36,911	10,023	9,848	?	?	906
Conn.	771,412	453,625	861,942	2,900	1,931	?	327	?	24,284
Delaware	325,286	192,232	161,770	1,640	800	290	372	56	6,637
Dt. Col.	360,000	29,283	79,610	1,025	3,608	?	?	?	– –
Florida	5,104,161	4,774,551	3,743,746	33,305	7,722	1,621	?	1,541	28,096
Idaho	88,626	396,940	306,158	6,482	?	2,945	?	?	– –
Iowa	591,820	639,635	711,390	9,331	2,882	0	0	0	– –
Kansas	387,827	735,614	474,036	13,746	0	0	0	0	0
Kentucky	1,679,581	1,380,802	275,012	8,250	1,750	483	?	97	120
Louis’na	1,298,539	897,897	692,325	14,569	2,581	170	0	1,290	64,653
Maine	329,965	277,963	378,823	5,573	43,940	?	?	?	– –
Maryland	2,134,839	1,007,391	731,137	20,894	9,338	?	?	?	– –
Mass.	1,526,870	479,237	2,434,600	8,587	6,367	169	39	133	30,847
Nebraska	357,030	574,359	250,668	13,012	?	?	?	?	– –
Nevada	567,767	492,190	325,640	14,322	3,728	65,024	?	?	– –
N. Hamp.	268,343	295,615	397,699	162	?	?	?	?	– –
N. Jersey	2,130,450	1,244,561	2,368,608	8,874	5,721	6,640	?	837	12,715
N. M.	560,686	372,783	268,032	7,792	4,049	360	?	?	6,354
N. York	5,775,104	2,674,700	2,429,021	6,502	26,453	?	41,911	1,586	591,417
No. Car.	2,647,466	2,066,197	2,101,341	34,563	?	?	?	?	– –
Okla.	769,845	941,844	297,364	4,796	?	?	?	?	– –
Oregon	958,784	698,791	829,912	18,962	10,053	3,681	10,248	?	122,504
Penn.	4,033,075	3,224,572	1,176,422	45,142	11,954	1,419	?	?	– –
Rhode Is.	306,953	91,513	370,931	?	?	?	?	?	3,123
So. Dak.	158,438	245,120	121,074	1,673	?	468	?	?	– –
Utah	151,681	628,916	486,537	10,927	650	4,505	?	?	23,903
W. Va.	531,363	392,030	296,930	5,616	2,013	171	?	?	– –
Wyo.	46,971	175,934	36,500	2,410	?	805	?	?	– –
TOTAL	44,591,256	32,700,321	31,755,864	517,462	255,913	99,341	52,897	5,540	1,511,850
Percent	40.00%	29.33%	28.48%	.46%	.23%	.09%	.05%	.00+%	1.36%

The "other" column includes: Alaska, Alaskan Independence; California, 503,955 American Independent and 75,094 Peace & Freedom; Colorado Unity; Connecticut Independent Party; Delaware 5,832 Independent Party and 751 American Delta; Florida 26,169 Independent Party and 472 Ecology Party and 1,083 America’s Independent Party and 372 Socialism & Liberation; Kentucky Socialist Workers; Louisiana 63,799 Independent Party and 854 Conservative; New Jersey 7,078 Conservative and 2,986 Socialist and 2,651 Natural Law; New Mexico 4,646 Independent American and 1,708 Better for America; New York 441,442 Independence and 146,372 Conservative and 3,603 Women’s Equality; Oregon 120,535 Independent Party and 1,969 Progressive; Rhode Island Moderate; Utah 23,639 Independent American and 264 United Utah.

Totals October 2016 were: Democratic 45,690,825 (40.60%), Republican 33,052,332 (29.37%), independent & miscellaneous 31,200,104 (27.72%), Libertarian 497,535 (.44%), Green 256,560 (.23%), Constitution 92,483 (.08%), Reform 5,294 (.00+%), Working Families 61,517 (.05%), other parties 1,662,329 (1.50%).

Totals October 2014 were: Democratic 42,755,625 (41.17%), Republican 30,938,676 (29.79%), independent & miscellaneous 27,688,850 (26.67%), Libertarian 399,302 (.38%), Green 253,267 (.24%), Constitution 78,434 (.08%), Reform 22,880 (.02%), Working Families 58,757 (.06%), other parties 1,666,473 (1.60%).

Totals October 2012 were: Dem. 43,512,746 (41.85%), Rep. 31,298,863 (30.10%), indp. & misc. 26,808,810 (25.79%), Libertarian 330,811 (.32%), Green 250,682 (.24%), Constitution 77,918 (.07%), Reform 22,880 (.02%), Americans Elect 6,408 (.01%), other parties 1,659,537 (1.60%).

Totals October 2008 were: Dem. 43,933,901 (43.62%), Rep. 30,944,590 (30.72%), indp. & misc. 24,157,259 (23.98%), AIP/Constitution 438,222 (.44%), Green 255,019 (.25%), Libertarian 240,328 (.24%), Reform 32,961 (.03%), other parties 675,980 (.67%).

Totals October 2004 were: Dem. 37,301,951 (42.19%), Rep. 28,988,593 (32.79%), indp. & misc. 20,471,250 (23.15%), Constitution 320,019 (.36%), Green 298,701 (.34%), Libertarian 235,521 (.27%), Reform 63,729 (.07%), Natural Law 39,670 (.04%), other parties 695,639 (.79%). See page four for more about this chart.

Steve Poizner recently revealed he will be an independent candidate this year for Insurance Commissioner of California. This is a partisan office. Poizner was elected to that position in 2006 as a Republican, but he did not seek re-election in 2010. He will be handicapped by California’s top-two system in two ways: (1) his ballot label will not be "independent", but instead the unappealing label "party preference: none"; (2) voters generally don’t get interested in independent or minor party candidates until after they see who the major parties are running. But unless Poizner places first or second in the June primary, he can’t run in November. Under a normal system, he could petition onto the November ballot and thus get attention in the general election season.

On February 20, Massachusetts Representative Solomon Goldstein-Rose changed his registration from Democratic to independent. He is age 24.

On February 13, St. Louis held a special election to fill the vacancy for Alderman, 8^th ward. St. Louis uses partisan elections for city office. An independent, Annie Rice, defeated her only opponent, the Democratic nominee.

The Libertarian Party has 82,500 signatures in Ohio, 9,000 in Tennessee, and 1,000 in Virginia. The Constitution Party has 4,000 in North Carolina, and 100 in New Mexico. The Green Party has 500 in Indiana and 200 in Idaho. The petitioning chart will appear in the April issue.

On January 27, New Mexico’s Land Commissioner, Aubrey Dunn, announced that he had changed his registration from Republican to Libertarian, and that he is seeking the Libertarian nomination for U.S. Senate.

On February 22, J. David Lashar, a high-ranking official in the Maryland Health Department, said he had changed his registration to Libertarian and that he will seek the Libertarian nomination for U.S. House, 3^rd district.

Arthur Jones is the only candidate on the ballot in the Illinois Republican primary for U.S. House, 3^rd district, in Chicago. He publicly proclaims that Adolf Hitler was a good leader for Germany, and that the Holocaust is not true. The primary is March 20. Illinois does permit write-in votes in primaries.

On February 13, Florida held a special election to fill the vacancy in the State House, 72^nd district. The results: Democratic 52.2%; Republican 44.8%; Libertarian 3.0%. When this seat had last been up, in November 2016, the results had been: Republican 58.1%; Democratic 41.9%.

Lynn Kahn was an independent presidential candidate in 2016. She placed fifteenth, with 5,733 votes. This year she will seek the Green Party nomination for U.S. House in New York’s 21^st district, the northern-most district in the state.